Petitioners, (1)
several environmental organizations and a number of
affected individuals, appeal from the trial court's dismissal of their petition for judicial
review of a final order that respondent Environmental Quality Commission (EQC) issued
in an administrative proceeding that EQC treated as other than a contested case.
Petitioners raise a number of procedural and substantive issues. First, we hold that
petitioners do not have a right to a contested case hearing. Second, we hold that the trial
court's failure to provide an evidentiary hearing that meets the requirements described in
Norden v. Water Resources Dept., 329 Or 641, 996 P2d 958 (2000) (Norden II), requires
us to remand this case to the trial court.

This case involves the United States Army's application for permits from
the Department of Environmental Quality (DEQ) and EQC (2)
to destroy chemical
weapons that are stored at the Umatilla Army Depot in northeastern Oregon. The Army
proposes to burn the chemicals and their containers in specially designed incinerators on
the depot property. In order to do so, it must first obtain permits from DEQ and
EQC. (3)
The statue requires DEQ and EQC, as part of considering the applications for
the permits, to determine whether the Army's proposed facility meets the applicable legal
standards. For the permit at issue in this case, that means that EQC must find that the
incinerators will meet the criteria established in ORS 466.055 for facilities that treat or
dispose of hazardous waste. One criterion is that the facility will not have an adverse
effect on the public health or safety, on the environment, or on adjacent lands, ORS
466.055(5). Another statutory requirement is that the facility must use the best available
technology for treating and disposing of the hazardous waste. ORS 466.055(3). Finally,
EQC is required to base its findings on "information submitted by the applicant, the
Department of Environmental Quality or any other interested party[.]" ORS 466.055.

A number of years passed between when the Army first applied for the
permits and when EQC issued the order that is on review in this case. During that period,
DEQ hired an independent consulting firm to examine the Army's proposal. In its draft
assessment report, the consultant concluded that the proposed incinerators would not
create major adverse effects on the public health and safety or on the environment. DEQ
made that report and other materials available to the public and solicited public comments
on them. Over a seven-month period, DEQ held four public hearings, and EQC
conducted seven work sessions on the proposed permits. During that time, a consulting
firm that the Army hired issued a separate risk assessment report that concluded that the
risks of proceeding were less than the risks of keeping the materials in storage. DEQ
received additional comments and materials, both supporting and opposing the
incinerators; petitioners were among the opponents who testified at the public hearings or
who submitted materials supporting their position. DEQ's consulting firm revised its
draft assessment report in light of those comments and materials and issued a final report.
The Army's consultant also responded to that information.

At the conclusion of the hearings and work sessions, EQC decided to issue
the hazardous waste permit to the Army on certain conditions. It embodied that decision
in an extensive order that it entered on February 10, 1997, and that it expressly designated
as an order in other than a contested case. The order included a number of findings of
fact related to the statutory criteria. EQC stated that in making its findings it was
"particularly persuaded by" the reports of DEQ's consultant, information from the Army's
consultant, and the report and testimony of Dr. Kristina Iisa, an engineering professor at
Oregon State University.

Petitioners sought judicial review of EQC's order in the Multnomah County
Circuit Court under ORS 183.484, which provides for judicial review of final orders in
other than contested cases. The circuit court reviewed the order based on the record
before EQC. It refused petitioners' requests to conduct discovery, cross-examine
witnesses, or present evidence in addition to that in the agency record. After its review,
the court remanded one portion of the order to EQC for clarification. After EQC clarified
the order, the court entered a judgment affirming the order in its entirety. Petitioners
appeal from that judgment.

ORS 183.484(5) sets forth the criteria for judicial review of an order in
other than a contested case:

"(a) The court may affirm, reverse or remand the order. If the court
finds that the agency has erroneously interpreted a provision of law and that
a correct interpretation compels a particular action, it shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for further action under a correct
interpretation of the provision of law.

"(b) The court shall remand the order to the agency if it finds the
agency's exercise of discretion to be:

"(A) Outside the range of discretion delegated to the agency
by law;

"(B) Inconsistent with an agency rule, an officially stated agency
position, or a prior agency practice, if the inconsistency is not explained by
the agency; or

"(C) Otherwise in violation of a constitutional or statutory provision.

"(c) The court shall set aside or remand the order if it finds that the
order is not supported by substantial evidence in the record. Substantial
evidence exists to support a finding of fact when the record, viewed as a
whole, would permit a reasonable person to make that finding."

Although petitioners' arguments that they have a statutory right to a
contested case hearing are largely derivative of their constitutional arguments, we will
nevertheless consider their statutory claims first. If the applicable statutes give petitioners
what they desire, they have not been deprived of any constitutional right. SeeCrocker
and Crocker, 332 Or 42, 46-47, 22 P3d 759 (2001); Leo v. Keisling, 327 Or 556, 560,
562, 964 P2d 1023 (1998).

ORS 183.310(2)(a) defines a "contested case" as:

"[A] proceeding before an agency:

"(A) In which the individual legal rights, duties or privileges of
specific parties are required by statute or Constitution to be determined only
after an agency hearing at which such specific parties are entitled to appear
and be heard;

"(B) Where the agency has discretion to suspend or revoke a right or
privilege of a person;

"(C) For the suspension, revocation or refusal to renew or issue a
license where the licensee or applicant for a license demands such hearing;
or

"(D) Where the agency by rule or order provides for hearings
substantially of the character required by ORS 183.415, 183.425, 183.450,
183.460 and 183.470."

Petitioners assert that they are entitled to a contested case hearing as defined
in ORS 183.310(2)(a)(A) because the state and federal constitutions require that their
individual legal rights in this proceeding be determined only after a hearing at which they
are entitled to appear and be heard. They also refer to ORS 466.130, which provides:

"The Environmental Quality Commission shall conduct a public
hearing in the county or counties where a proposed hazardous waste
disposal site is located and may conduct hearings at such other places as the
Department of Environmental Quality considers suitable. At the hearing the
applicant may present the application and the public may appear or be
represented in support of or in opposition to the application."

Petitioners argue that determinations under ORS 466.130 require a contested case
hearing, apparently on the ground that the dangers that the incinerator allegedly poses to
those who live near it give those persons a legal right to oppose permitting it to operate.

We turn to petitioners' argument that they have a constitutional right to a
contested case hearing. That argument appears to be based primarily on their assertion
that the activities involved in incinerating the chemicals pose serious dangers to persons
who live in the vicinity of the depot. For example, petitioners state:

"The Petitioners' constitutionally protected life-interests include the
right to be safe in one's person and home. That safety is placed in great
jeopardy by the state's permitting action, which will allow the movement,
draining, chopping, and burning of deadly chemical warfare agents. * * *

"* * * Petitioners' protected life interests include the right to be
reasonably free from contamination and unwanted ingestion or exposure to
dangerous chemicals. There is no question that the Army's incineration
facility as currently planned will contaminate air, water, soil, and locally
grown foods. * * * The risks associated with operation of the Army's
incinerators and the corresponding releases of chemical warfare agents,
dioxins, heavy metals have been inadequately assessed and politically
minimized by the agencies. * * *

"The permit issued to the Army also impact[s] Petitioners'
constitutionally protected property interests. The contamination that will
occur during the operation of the Army's incinerators will so threaten or
actually contaminate Petitioners' properties that they will be forced to alter
their property use."

Petitioners' factual statements are based exclusively on evidence that
supports their position, much if not all of which they and other opponents of the facility
presented to EQC. As is true of their brief on appeal as a whole, they do not consider
whether other evidence would support different conclusions, let alone show that the
record as a whole compels the findings that they describe. However, even if we were to
accept petitioners' factual statements as uncontroverted, those facts do not support their
legal conclusion that they have a constitutional right to a contested case hearing.

We first consider petitioners' arguments under the state constitution. They
assert that the permit will violate their right under Article I, section 10, of the Oregon
Constitution to a remedy for wrongs done to them. SeeSmothers v. Gresham Transfer,
Inc., 332 Or 83, 23 P3d 333 (2001) (Article I, section 10, prevents legislature from
abolishing fundamental common law causes of action without providing an adequate
substitute remedy). In support of that argument, they cite federal cases that hold that an
entity that operates within the terms of a permit issued under an environmental protection
act is shielded from actions that assert a violation of that act. See, e.g., Piney Run Pres.
Assoc. v. County Commrs., 268 F3d 255 (4th Cir 2001); Greenpeace v. WTI, 9 F3d 1174
(6th Cir 1993). Thus, according to petitioners, they will be unable to obtain a remedy
when the operation of the incinerator harms them or their property.

We turn to petitioners' argument under the Due Process Clause of the
Fourteenth Amendment. As EQC and DEQ point out, the foundation for determining
both a party's due process right to a hearing and the nature of that hearing is the three-part
test that the United States Supreme Court established in Mathews v. Eldridge, 424 US
319, 96 S Ct 893, 47 L Ed 2d 18 (1976). The issue in Mathews was whether a recipient
of disability benefits was entitled to a hearing before the termination of those benefits
and, if so, the nature of the required hearing. The United States Supreme Court held that,
in determining those things, a court must consider

"first, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail."

Id. at 335. Although they do not cite Mathews, petitioners do rely on Koskela v.
Willamette Industries, Inc., 331 Or 362, 15 P3d 548 (2000), which itself was based on
Mathews, to support their arguments. In Koskela, the Supreme Court held that a workers'
compensation claimant had a due process right to an oral evidentiary hearing on whether
he was permanently and totally disabled despite a statute that limited the evidence that he
could present.

Neither Mathews nor Koskela assists petitioners. In both cases, as in similar
cases holding that there was a due process right to a hearing, the party seeking a hearing
had a private interest involved and was threatened with governmental action that would
have affected that interest in some manner. In this case, however, petitioners do not have
a private interest that will be affected by EQC's action. As we described above, they have
not suffered an injury. In addition, they are not seeking a governmental benefit, nor are
they threatened with governmental action against them. The interests that petitioners
assert, and the issues that ORS 466.130 requires EQC to resolve, involve the public
interest, not the private rights of any person. Although those issues may affect some
members of the public more than others, nothing in ORS 466.005 to 486.385 creates a
private interest in their correct resolution. Petitioners simply do not identify a
constitutionally protected property or liberty interest that would require us to engage in
Mathews-like analyses. We conclude that petitioners were not entitled to a contested case
hearing, and the trial court therefore had jurisdiction of this case under ORS 183.484.

We return to petitioners' first assignment of error, in which they assert that
the trial court erred in not permitting them to introduce evidence in addition to the
evidence in the record before the EQC. Petitioners rely on Norden II, which the Supreme
Court decided after the trial court entered its judgment. Because it is crucial to our
decision, we will describe Norden II in some detail.

The petitioner in Norden II sought judicial review of an order of the Water
Resources Department that required her to obtain a water right permit before diverting
water from a spring on her property. The order was based on the department's factual
finding that the water from the spring, if unimpeded, would flow off the petitioner's land
and into a neighboring creek. If that were the case, the applicable law required the
petitioner to have a permit for the diversion. The petitioner sought judicial review of the
order in circuit court under ORS 183.484. That court permitted both the petitioner and
the department to present evidence in addition to the information that was before the
department when it issued the order; it then concluded, based on the complete record, that
there was not substantial evidence to support the department's decision. In Norden I, this
court reversed, 158 Or App at 138, holding that the trial court was correct in accepting
additional evidence but had erred in concluding that there was not substantial evidence to
support the decision. The Supreme Court allowed review.

The first question that the Supreme Court considered was the circuit court's
role on judicial review of other than a contested case. The court first noted that nothing
in the statutes requires an agency in other than a contested case to make a record or to
enter findings of fact before issuing an order. On the other hand, circuit courts routinely
make records and find facts. Norden II, 329 Or at 647. It concluded, therefore, that the
"record" to which ORS 183.484 refers, and which is the basis for judicial review, is the
record that the agency and the petitioner make before the circuit court. Indeed, the court
noted that the proceeding in the circuit court may be the first opportunity that the
petitioner would have to present evidence. Thus, it concluded, the text of the statute
demonstrates that the legislature did not intend to limit the record on judicial review to
the evidence before the agency. Id.

The ability of the petitioner and the agency to present evidence in the circuit
court is especially significant in light of the "whole record" standard for determining
whether substantial evidence supports the agency's findings. In making that
determination, the reviewing court must consider evidence that detracts from those
findings as well as evidence that supports them. Judicial review before the circuit court
may be the first chance for the petitioner to present evidence that would detract from the
agency's order, Norden II, 329 Or at 647-48, and "[l]imiting the scope of the record to the
evidence that was available to the agency when it issued its order would undermine the
'whole record' review required by ORS 183.484(4)(c)." Id. at 648.

The court explained that judicial review of a contested case is limited to the
record before the agency because the legislature has required agencies in contested cases
to follow trial-like proceedings that culminate in a record and in a final order that contains
findings of fact and conclusions of law. In contrast,

"[i]n other than contested case proceedings, there may be no record to
review, or only so much record as supports the agency's order, until a record
is made before the circuit court. We find no suggestion in the APA that the
legislature intended the record in other than a contested case proceeding to
be less complete or well developed than the record in a contested case
proceeding."

Norden II, 329 Or at 648-49 (emphasis added). In summary, the court concluded that
"ORS 183.484 affords the parties the opportunity to develop a record like the one that
parties are entitled to develop at an earlier stage in a contested case proceeding." Id. at
649.

The Supreme Court emphasized, however, that the circuit court's obligation
to permit the parties to create a complete record on judicial review does not change the
court's role in evaluating that record. The circuit court continues to review the agency's
action for substantial evidence supporting it. The court's purpose on review is not to find
the facts itself but to decide "whether the evidence would permit a reasonable person to
make the determination that the agency made in a particular case." Norden II, 329 Or at
649. In Norden II, for example, after the parties presented their cases in the circuit court
there was evidence in the record as a whole to support the department's conclusion that, if
the water on the petitioner's land were not diverted or obstructed, it would flow off that
land. There was also evidence to the contrary. Because the record as a whole, despite the
contrary evidence, would permit a reasonable person to find that the water would flow off
the property, the Supreme Court affirmed the agency's order. Id.

4. Petitioners refer to the trial court's legal conclusions as "findings." However, a
finding refers to a factual determination, not to a legal conclusion. See, e.g., ORCP 62 A (on a
party's request "the court shall make special findings of fact, and shall state separately its
conclusions of law thereon.") We treat petitioners' argument as directed to the court's legal
conclusions.

5. ORS 466.010 describes the purposes of the act of which ORS 466.130 is a part:

"(1)(a) The Legislative Assembly finds that it is in the
interest of public health and safety and environment to protect
Oregon citizens from the potential harmful effects of the
transportation and treatment or disposal of hazardous waste and
PCB within Oregon.

"(b) Therefore, the Legislative Assembly declares that it is
the purpose of ORS 466.005 to 466.385 and 466.992 to:

"(A) Protect the public health and safety and environment
of Oregon to the maximum extent possible;

"(B) Exercise the maximum amount of control over actions
within Oregon relating to hazardous waste and PCB transportation
and treatment or disposal;

"(C) Limit to the extent possible the treatment or disposal
of hazardous waste and PCB in Oregon to materials originating in
the states that are parties to the Northwest Interstate Compact on
Low-Level Radioactive Waste Management under ORS 469.930;
and

"(D) Limit to the extent possible the size of any hazardous
waste or PCB treatment or disposal facility in Oregon to a size
equal to the amount of waste and PCB originating in Oregon,
Washington, Idaho and Alaska of the type handled by such a
treatment or disposal facility.

"(2) The Legislative Assembly further finds and declares
that in the interest of public health and safety and to protect the
environment, it is the policy of the State of Oregon to give priority
in managing hazardous waste in Oregon to methods that reduce the
quantity and toxicity of hazardous waste generated before using
methods that reuse hazardous waste, recycle hazardous waste that
cannot be reused, treat hazardous waste or dispose of hazardous
waste by landfilling."

6. Petitioners rely on Sugarloaf v. Waste Disposal, 323 Md 641, 594 A2d 1115
(1991), in which the Maryland Court of Appeals stated that the plaintiffs would be entitled to a
contested case hearing at some point before the approval of a waste disposal facility. However,
the interpretation of ORS 466.130 is dependent on ascertaining the intent of the Oregon
Legislature.

7. Our holding in this respect is narrow in scope. We hold only that the interests of
those petitioners who live near the incinerators is no different from the interests of members of
the general public for purposes of the exercise of authority under the applicable statute. That is
not to say, and we do not decide, whether those petitioners who live near the depot have a
cognizable interest different from members of the public at large based on other sources of legal
authority.

8. Because of the basis for our decision, we do not need to determine whether
petitioners' concern about the possible effect of the permits on a subsequent claim for injury from
the operation of the incinerators is well founded.

9. Respondents argue, in response to petitioners' seventh assignment of error, that
petitioners waived their claimed right to conduct discovery before the trial court granted
respondents' motion for summary judgment. Respondents appear to assert that petitioners
thereby waived the issues that they raise in their first assignment of error, which respondents treat
as an attack on the circuit court's use of the summary judgment procedure. The relationship
between respondents' arguments and petitioners' assignments is not clear. In any case, at the
summary judgment hearing petitioners clearly argued that they were entitled to present additional
evidence and the trial court expressly rejected that argument.

10. Amicus Washington Demilitarization Company, the primary contractor at the
Umatilla depot, argues that any hearing on remand should be severely limited. It refers to related
proceedings that have occurred since the Supreme Court's decision in Norden, arguing that they
show problems that can arise from a broader hearing. Those proceedings are not before us and
we do not comment on them.

11. On September 17, 2004, this court denied petitioners' motion for an order staying
EQC's order pending the resolution of this appeal. We continue to adhere to that order. We
understand from the material filed in relation to that motion that the Army may have begun
incinerating materials in accordance with the permits that EQC and DEQ issued. We also
understand from the record that the incineration of those materials will occur over a number of
years. In addition, we understand from counsel that there may be other pending litigation
involving the parties and the incineration process. As is apparent from our holding in this case,
judicial review under ORS 183.484(5) depends on a reviewing court having a complete record
before it. On remand, the trial court and the parties should consider how that objective may best
be attained. Piecemeal litigation of this issue is not in the best interests of the public or the
parties, and it does not promote judicial economy.